Rule 148. Reprisals in Non-International Armed Conflicts

Rule 148. Parties to non-international armed conflicts do not have the right to resort to belligerent reprisals. Other countermeasures against persons who do not or who have ceased to take a direct part in hostilities are prohibited.
State practice establishes this rule as a norm of customary international law applicable in non-international armed conflicts.
Common Article 3 of the Geneva Conventions prohibits violence to life and person, the taking of hostages, outrages upon personal dignity, in particular humiliating and degrading treatment, and the denial of fair trial. These prohibitions apply and remain applicable “at any time and in any place whatsoever”.[1] Consequently, any reprisal which entails one of these acts is prohibited.[2] In addition, common Article 3 provides that all persons who do not or no longer take a direct part in hostilities must be treated humanely “in all circumstances”.[3] Any reprisal which is incompatible with this requirement of humane treatment is, therefore, also prohibited.[4] In addition, the rules contained in common Article 3 constitute, as confirmed by the International Court of Justice, a “minimum yardstick” for all armed conflicts and reflect “elementary considerations of humanity”.[5] Article 4 of Additional Protocol II similarly allows no room for reprisals against persons who do not or no longer take a direct part in hostilities.[6]
Acts of reprisal in non-international armed conflicts have, in practice, been condemned. For example, in resolutions adopted in the context of the conflict in Afghanistan, the UN General Assembly and UN Commission on Human Rights condemned measures of reprisal against civilians.[7] Various Special Rapporteurs of the UN Commission on Human Rights have also condemned “reprisal” killings and detention with respect to the conflicts in Chad, Colombia, Democratic Republic of the Congo, Mali, Rwanda and Turkey.[8]
In a resolution adopted in 1970, the UN General Assembly reaffirmed the principle that “civilian populations, or individual members thereof, should not be the object of reprisals” as a basic principle for the protection of the civilian population in armed conflict.[9] In the Tadić case in 1995, the International Criminal Tribunal for the former Yugoslavia considered that this resolution was “declaratory of the principles of customary international law regarding the protection of civilian populations and property in armed conflicts of any kind”.[10]
In the Martić case in 1996, the Tribunal inferred a prohibition of reprisals against civilians in non-international armed conflicts on the basis of Article 4(2) of Additional Protocol II because they are contrary to “the absolute and non-derogable prohibitions enumerated in this provision” and because prohibited behaviour must remain so “at any time and in any place whatsoever”. The Tribunal also considered that the prohibition of reprisals against civilians in non-international armed conflicts is strengthened by the inclusion of the prohibition of “collective punishments” in Article 4(2)(b) of Additional Protocol II.[11] Collective punishments are also prohibited under customary international law (see Rule 103). Several military manuals further emphasize that all acts of vengeance are prohibited.[12]
There is insufficient evidence that the very concept of lawful reprisal in non-international armed conflict has ever materialized in international law. All practice describing the purpose of reprisals and conditions for resort to them refers to inter-State relations and originates from practice in the 19th and early 20th centuries. Recent practice relating to non-international armed conflicts has in no way supported the idea of enforcing the law in such conflicts through reprisals or similar countermeasures, but, on the contrary, has stressed the importance of the protection of civilians and persons hors de combat, of respect for human rights law and of diplomatic means to stop violations. Several military manuals define belligerent reprisals as a measure of enforcement by one State against another.[13]
A suggestion to include specific prohibitions of reprisals in non-international armed conflicts made during the Diplomatic Conference leading to the adoption of the Additional Protocols was rejected. The reasons given during the Conference for this rejection are significant in this respect. Only four States said they thought the concept of reprisals in non-international armed conflicts was possible in international law, namely Cameroon, Finland, Germany and Yugoslavia. Cameroon, however, was of the opinion that such reprisals should be “limited to certain well-defined cases, restrictively enumerated”.[14] Finland could accept the idea but stated that they should “never in any circumstances be used against the civilian populations” because “there was universal agreement that reprisals of an inhumane character were inadmissible”.[15] According to Yugoslavia, it went without saying that reprisals against persons and objects in the power of the adversary were prohibited; “this rule of customary international law … was codified in 1949 in the Geneva Conventions”. Beyond this prohibition, it considered that reprisals should never be exercised against “non-combatants, women and children”.[16] Germany thought that there was no objection from a legal point of view to use of the term “reprisal”, but from a political point of view it could be inferred that the use of this term “gave the Parties to a conflict a status under international law which they had no right to claim” and suggested that the formulation “measures of retaliation comparable to reprisals” might not meet the same objections.[17]
Several States voted against the proposal because they felt that the very concept of reprisals had no place in non-international armed conflicts.[18] Some expressed the fear that the introduction of the term, even by way of a prohibition, could give the impression a contrario that the concept was possible.[19]
In order to avoid introducing the concept of reprisals (as this would erroneously give the impression that there was, in international law, such a possibility in non-international armed conflict), Canada, the Islamic Republic of Iran, Italy, Pakistan and the Philippines submitted various proposals avoiding the use of the term “reprisal” to get across the idea that parties were prohibited from any countermeasure or act of retaliation in response to a violation of the adverse party.[20]
The Belgian delegation at the Diplomatic Conference expressed the view that, as to the fundamental guarantees in Article 4 of Additional Protocol II, “the question of reprisals could not arise, since under the terms of that article, persons who did not take a direct part or who had ceased to take part in hostilities, were in all circumstances to be treated humanely”.[21] A similar position was taken by Italy, Sweden and the United Kingdom.[22]
[1] Geneva Conventions, common Article 3.
[2] See Jean S. Pictet (ed.), Commentary on the First Geneva Convention, ICRC, Geneva, 1952, p. 55.
[3] Geneva Conventions, common Article 3.
[4] See Jean S. Pictet (ed.), Commentary on the First Geneva Convention, ICRC, Geneva, 1952, p. 55.
[5] Geneva Conventions, common Article 3; ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment, 27 June 1986, ICJ Reports 1986, p. 114, § 218.
[6] See Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 4530; see also Michael Bothe, Karl Joseph Partsch, Waldemar A. Solf (eds.), New Rules for Victims of Armed Conflicts, Martinus Nijhoff, The Hague, 1982, p. 637.
[7] See, e.g., UN General Assembly, Res. 48/152 and 49/207 (cited in Vol. II, Ch. 41, § 1248); UN Commission on Human Rights, Res. 1993/66 and 1994/84 (ibid., § 1249) and Res. 1995/74 (ibid., § 1250).
[8] See, e.g., UN Commission on Human Rights, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Reports (ibid., §§ 1251–1253), Special Rapporteur on the Situation of Human Rights in Rwanda, Reports (ibid., §§ 1254–1255), Special Rapporteur on Torture and Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Joint Report (ibid., § 1256), Special Rapporteur on the Situation of Human Rights in Zaire, Report (ibid., § 1257); see also UN Verification Mission in Guatemala, Director, First–Fourth Reports (ibid., § 1258).
[9] UN General Assembly, Res. 2675 (XXV) (adopted by 109 votes in favour, none against and 8 abstentions) (ibid., § 766).
[10] ICTY, Tadić case, Interlocutory Appeal (ibid., § 1263).
[11] ICTY, Martić case, Review of the Indictment (ibid., § 1264).
[12] See, e.g., the military manuals of Benin (ibid., § 70), France (ibid., § 75), Philippines (ibid., § 88) and Togo (ibid., § 93).
[13] See, e.g., the military manuals of Australia (ibid., §§ 67–68), Canada (ibid., § 71), Ecuador (ibid., § 74), Germany (ibid., §§ 76 and 78), Netherlands (ibid., § 85), New Zealand (ibid., § 86), United Kingdom (ibid., § 94) and United States (ibid., §§ 97 and 99).
[14] See the statement of Cameroon (ibid., § 1208).
[15] See the statement of Finland (ibid., § 1215); see also the statement of New Zealand (ibid., § 1233).
[16] See the statement of Yugoslavia (ibid., § 1244).
[17] See the statement of the Federal Republic of Germany (ibid., § 1219).
[18] See the statements of Canada (ibid., § 1212), Islamic Republic of Iran (ibid., § 1226–1227), Iraq (ibid., § 1228), Mexico (ibid., § 1231), Nigeria (ibid., § 1234) and United States (ibid., § 1242).
[19] See the statements of Mexico (ibid., § 1221), Poland (ibid., § 1238) and Syrian Arab Republic (ibid., § 1240).
[20] See the proposals submitted to the CDDH by Canada (ibid., §§ 1210–1211) (“acts of retaliation comparable to reprisals” and “measures which are in breach of the Protocol”), Islamic Republic of Iran (ibid., § 1225) (“acts of vengeance”), Italy (ibid., § 1229) (“the provisions of the present Part must be observed at all times and in all circumstances, even if the other Party to the conflict is guilty of violating the provisions of the present Protocol”), Pakistan (ibid., § 1236) (“isolated cases of disrespect … by one party shall not in any circumstances authorize non-compliance by the other party … even for purposes of inducing the adverse party to comply with its obligations”) and Philippines (ibid., § 1237) (“countermeasures”); see also the statement of Nigeria (ibid., § 1234) (“retaliation” or “vengeance”).
[21] See the statement of Belgium (ibid., § 1207).
[22] See the statement of Italy (ibid., § 1230), Sweden (ibid., § 1239) and United Kingdom (ibid., § 1241); see also the statement of Yugoslavia (ibid., § 1244).